Uddin v. Attorney Gen. United States

• Decision Date: 06 September 2017
• Docket Number: No. 17-1056.,17-1056.
• Citation: 870 F.3d 282
• Parties: Joshim UDDIN, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

870 F.3d 282

Joshim UDDIN, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 17-1056.

United States Court of Appeals, Third Circuit.

Argued July 13, 2017

Opinion filed: September 6, 2017

Amended September 25, 2017

Visuvanathan Rudrakumaran, Esquire (Argued), Law Office of Visuvanathan Rudrakumaran, 875 Avenue of the Americas, Suite 906, New York, NY 10001, Counsel for Petitioner

Daniel I. Smulow (Argued), United States Department of Justice, Office of Immigration Litigation, P. O. Box 878, Ben Franklin Station, Washington, DE 20044, Counsel for Respondent

Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges

OPINION

RENDELL, Circuit Judge:

The Board of Immigration Appeals ("Board") found that Joshim Uddin, a citizen and native of Bangladesh, was ineligible for withholding of removal because he was a member of the Bangladesh National Party ("BNP"), a major political party in his homeland. According to the Board, the BNP qualified as a Tier III terrorist organization under the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Thus, Uddin's membership in the BNP rendered him ineligible for relief.

While we will deny the petition for review challenging the Board's ruling dismissing Uddin's Convention Against Torture ("CAT") claim, we will grant the petition in part and remand on his withholding of removal claim. The Board has pointed to terrorist acts by BNP members. But it did not find that BNP leadership authorized any of the terrorist activity committed by party members. Today, we join the reasoning of the Seventh Circuit and the Board in many of its own opinions by holding as follows: unless the agency finds that party leaders authorized terrorist activity committed by its members, an entity such as the BNP cannot be deemed a Tier III terrorist organization.

I. Statutory Background

The so-called "terrorism bar" precludes aliens who are members of "terrorist organizations" from seeking several forms of relief, including withholding of removal. See 8 U.S.C. §§ 1182(a)(3)(B)(i), (vi) ; 1227(a)(4)(B); 1158(b)(2)(A)(v); 1231(b)(3)(B)(iv).

The INA, in turn, establishes three different kinds of terrorist organizations.

Tier I terrorist organizations are officially listed groups designated by the Secretary of State. 8 U.S.C. §§ 1182(a)(3)(B)(vi)(I) & 1189. Such groups are maintained on an official register, and are thus easily identifiable to immigration authorities.

Tier II terrorist organizations are groups that have engaged in terrorist activity, and are designated by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, for purposes of immigration exclusion. 8 U.S.C. § 1182(a)(3)(B)(vi)(II). Such groups are maintained on an official register, and are thus also easily identifiable to immigration authorities.

Tier III terrorist organizations, the groups at issue in this case, are groups "of two or more individuals, whether organized or not, which engage [ ] in, or [have] a subgroup which engages in," terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Terrorist activity is defined broadly by the statute as conduct "unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State)" and which involves one of several enumerated actions, including the "highjacking or sabotage of any conveyance," "an assassination," use of any "biological agent, chemical agent, or nuclear weapon or device, or [ ] explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property," or a "threat, attempt, or conspiracy to" commit such acts. 8 U.S.C. § 1182(a)(3)(B)(iii).

There is no official register of Tier III organizations; instead, groups are adjudicated as Tier III organizations on a case-by-case basis.

A. Assessing Tier III Status

There is relatively little guidance from Courts of Appeals as to how to determine whether an organization is a Tier III terrorist group. But, from a procedural standpoint, departmental regulations set forth a burden-shifting structure for adjudicating such cases. First, the Government must introduce evidence "indicat[ing]" that a group qualifies as a Tier III terrorist organization. Then, the burden shifts to the applicant to prove "by a preponderance of the evidence" that the bar does not apply. 8 C.F.R. § 1208.16(d)(2).

If an alien is deemed a member of a Tier III organization, then he can avoid the terrorism bar if he can "demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization." 8 U.S.C. § 1182(a)(3)(B)(i)(VI).

II. Factual Background

A. Events in Bangladesh

The BNP, led by Khaleda Zia since 1984, is one of Bangladesh's two major political parties; the other is the Awami League (AL). Both groups have been in and out of power over the past several decades: From 2001 to 2006, the BNP was in power. From approximately 2006-2008, a military-backed government ruled the country to oversee free and fair elections. In late 2008, the AL won a decisive victory to lead the country. In January 2014, the most recent election, the AL maintained its hold on power, despite significant protests and demonstrations by the BNP as to the election's fairness.

Uddin joined the BNP in February 2008, when the group was no longer in power. Soon after, he was promoted to general secretary for his district. In this position, he distributed posters and recruited college students.

Uddin claims that on several occasions, members of the AL persecuted him on account of his political beliefs. First, he asserts that on December 1, 2008, ten members of the AL approached him while he was hanging BNP posters with colleagues. When he refused to stop hanging posters, the AL members allegedly beat him, resulting in injuries to his face that a doctor treated with stitches.

Second, he claims that in March 2009, AL members broke his leg with a hockey stick.¹ Third, Uddin asserted that AL members threatened to kill him in October 2009 if he did not stop working for the BNP, and that AL members threatened him again in November and March 2010.

Finally, Uddin alleged that on July 15, 2011, between ten and fifteen AL members broke into to his home and burned it down. Uddin had escaped through the back door. In October 2011, Uddin fled Bangladesh.

B. Events in the United States

After traveling through more than a half-dozen countries, Uddin entered the United States illegally in 2013. He eventually settled in Brooklyn, New York. In 2015, he attended "about one or two" meetings of BNP members in the United States. AR 155.

Later in 2015, Uddin was arrested in New Jersey for charges that were eventually dismissed in state court, including selling untaxed cigarettes and possession of marijuana, drug paraphernalia, and a weapon (brass knuckles). After he posted bail, immigration officers arrested him on January 28, 2016, and served him with a Notice to Appear charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) (alien present in United States without having been admitted or paroled by an immigration officer).

C. IJ Proceedings

At his hearing before an Immigration Judge, Uddin conceded his removability as charged. But he filed a defensive application for asylum, withholding of removal, and CAT protection. Eventually he conceded, through counsel, that he was ineligible for asylum because his application was untimely, and that he did not qualify for an exception to the one-year deadline set forth in 8 U.S.C. § 1158(a)(2)(B).² But Uddin maintained that he was eligible for withholding of removal and CAT protection. He argued that because of his affiliation with the BNP, he would face persecution if returned to Bangladesh on account of his political beliefs.

The IJ denied Uddin's application for relief.³ He found that Uddin was ineligible for withholding of removal because he was a knowing member of a Tier III terrorist organization, the BNP. The IJ found "abundant [record] evidence from reliable sources that the BNP has used violence for political purposes in the past." AR 71.

Describing that "abundant" evidence, the IJ first quoted a Congressional Research Services report on Bangladesh saying that "[p]olitical violence has long been part of the political landscape in Bangladesh." AR 71. He further noted that Uddin's own evidence stated that former opposition parties were "quick to take revenge on their outgoing rivals ... often in the form of violent attacks." Id. (emphases omitted).

Next, the IJ relied on a report stating that while in power from 2001 to 2006, the BNP "was criticized for its tacit support of radical Islamic groups," which were reportedly behind bomb blasts in 2005. AR 72. Then, the IJ cited evidence that the BNP had created the Rapid Action Battalion ("RAB") while in power, which it used as an extrajudicial "death squad" during its last term in office. AR 72.⁴

Finally, and most importantly, the IJ found evidence that BNP activists resorted to "massive violence including the torching of dozens of polling centers" during the 2013-2014 election cycle. AR 72 (citation omitted). The IJ emphasized that the BNP's leader, Khaleda Zia, had "announced the party would hold a series of general strikes and traffic blockades halting transport links to the capital."⁵ AR 73. During these strikes, according to an "authoritative" report by the NGO Human Rights Watch, "opposition party workers" (i) burned a truck driver's wife and baby alive by "fail[ing] to allow enough time for [them] to escape the vehicle;" (ii) killed four people by throwing a bomb onto a bus they were riding; (iii) badly burned a thirteen-year-old boy by torching the bus he worked on; and (iv) injured...